I am not sure who set my libidinal compass, but I suppose I should be grateful that it points in the direction it does. I have been able to marry the love of my life. She and I enjoy the law's recognition as a couple. We've not been stigmatized and asked to wear a disabling patch signifying second-class citizenship.
Not so with those friends and acquaintances of mine whosecompasses are set in a different way. A man cannot marry a man; nor can a woman marry a woman, at least not in Connecticut. This distinction between straight and gay love has no place in our law. The justices hearing arguments this week at the state Supreme Court should not shirk from courageous application of the principal of equality before the law.
The arguments for and against gay marriage have been rehearsed in other courts in other places. No new ground will be broken in Connecticut. What will be tested here is our vision of ourselves. Just how far are we willing to go to be one people bound together by rules that show equal respect for all?
Some argue that marriage is a legal doctrine of almost sacramental import. It is the union of a man and woman, they say. That is how it has always been. Indeed, the concept of marriage is bound inextricably with that of family. Husband and wife become one flesh and from their loins are spawned new flesh. The family is at the center of what holds a society together. Undermine the family, and loosen the bonds of society.
Let's drive the dross from this. Marriage is a sacrament in some religious traditions, and those worshiping in such traditions are free to treat it as such. Members of the various religious sects can define marriage any way the want, and they can bar from membership whomsoever they choose. That is a right of private association.
But the government has no business giving religious sacraments the force of law. That is the point of the First Amendment's establishment clause. And no credible claim can be raised that permitting gay marriage abridges a person's right to exercise freely his or her creed. Permitting gay marriage merely eliminates the majority's power to impose its creed sub silencio.
Gays can get all the rights of a married couple under civil union, we just don't permit them to marry. What silliness is this? The doctrine of separate but equal is reborn and this time it's pointed not at people of color, but at people whose desire seems different.
Those who flirt with disguised judicial activism in the form of originalism will argue that at time the state constitutions were formed, marriage meant man and wife. Originalism, whether practiced in Connecticut or by the likes of Antonin Scalia is not a form of judicial restraint. It is merely an active application of intellectual doctrine to defend the status quo against change.
Originalism means slavery is the norm. But new wine burst through the old skins of legal doctrine to recognize people of color as more than property. Can't this process of fermentation also yield a better understanding sexual preference?
Homosexuality is not a disease or an illness to be scorned. It may not even be a choice. It is the expression of a preference. What law says we must classify such preferences and stigmatize those in the minority with second-class citizenship? •
Reprinted with permission of The Connecticut Law Tribune.
